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RULED NOT OPPRESSION : Strata's QUICKY bylaw change pre-empted POT FARM - Kunzler v SP EPS 1433 2020/05/18 18:26  
Again NOT legal advice.

Will this be THE dispute that eventually joins a tiny group of previous condo or Building Scheme litigations with enough national import to be accepted for hearing by Canada's Supreme Court ?

That's if it gets that far, of course.

After lots of time, effort & bucks went into multi-jurisdictional approvals for SKYWATER CANNABIS, the owners of a newly declared bare land strata unit on SALT SPRING ISLAND B.C. faced an uprising of other strata owners.

There was a non-mellow quick proposal to expressly amend the strata's allowable land uses - which had included agriculture without restrictions on the range of substantially-sized units - to now pre-emptively prohibit pot farms. That's : NO GRAND-FATHERING either.

An Owners Meeting was called for strata by-law amendment to now prohibit what no one disputed had been a legal land use : a licensed pot farm as already far along the approvals route.

The Strata Owners Meeting served up some some controversial containment of the pot venturers' counsel.

With massive investment already into a Declaration-approved land use, the pot farm venturers at centre stage were limited ( by the Meeting Chair ) to FIVE MINUTES addressing the Owners ie their business venture's neck's on the line but for no more than the same five minute limit allowed to any strata unit.

Recording at the Meeting was prohibited.

The pot-farmers' counsel's note-taking para-legal assistant was ejected. ( yes, yes, happens all the time in Texas . . . )

And so up in smoke - at least for now - went the planned pot venture, pre-emptively to become un-lawful under the Declaration's list of lawful land uses.

B.C. Supreme Court has just rejected the pot farmers' claim that the by-law change was a "Significant Unfairness" under B.C.'s strata law. ( Strata Property Act, SBC 1998, c 43 http://canlii.ca/t/543qk - Part 10 — Legal Proceedings and Dispute Resolution / Division 1 — Suits Against the Strata Corporation Preventing or remedying unfair acts - section 164 )

It also refused to grand-father the proposed land use under B.C.'s strata law, which expressly legislates to require such when by-lawing to restrict existing pets or existing human age groups. ( Strata Property Act, SBC 1998, c 43 http://canlii.ca/t/543qk . . . Limits to pet and age bylaws 123 (1) )

Lots of time & bucks already in this project. Will it be appealed & how far ?

Will this litigation even eventually join the tiny group that includes pre-WW1's Pearson v Adams ( 'what's a detached dwelling house in Parkdale ?' ); Beach O'Pines ( 'White gentiles only' ), Winnipeg C.C. # 36 v BIRD Const 1995 ( deficiency claims without privity ); and Syndicat Northcrest v Anselem (2004) ( how sincere are balcony succahs as a religious exemption from balcony rules ?). There's also an obscure Building Scheme referral to the Judicial Committee of the Privy Council. ( Holditch v CNO Railway 1916 ).

Today it's claimed that more than 92 % of S.C.C. applications get outright refused at the gate. But is there enough at stake to take this quicky pre-emption a long way ?

Kunzler v The Owners, Strata Plan EPS 1433, 2020 BCSC 576 issued April 16/20 http://canlii.ca/t/j6gch
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